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The problem is that, without up-to-date records of the ownership of rights, the proper management of commons is very difficult. Owners cannot be consulted on entry to agri-environment schemes, breaches of rules cannot be identified easily, and consultation on works such as construction or fencing cannot be undertaken
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properly. Moreover, the lack of up-to-date records makes consultation on the formation of statutory commons councils or associations very difficult.

In conclusion, I want to make the following suggestion—that the regulations that I hope that the Minister will make will encourage the notification of transfers. The Land Registry will continue to be the bible of who owns what, but I hope that the Minister will assure the House that he will bring in regulations providing for some sort of notification system when rights are transferred. That notification could then be placed in the commons registers, so that we would have a more up-to-date record of who owns the land. That would make consultation, and all the other things that I have mentioned, much easier.

I hope that the Minister will be minded to do what I suggest. I am not looking for firm guarantees today, but I also hope that he does not give me a firm put-down. I accept that this matter is not the top priority, and that he may have other regulations to make first, but I hope that he will say that he at least sees the merit of my proposal and considers that it could be worthwhile. I should like a guarantee that he will consult about it in the next year to see whether it has legs. If he finds that it does have legs, I shall give him my full backing—even though he can run a lot faster than I can these days.

Mr. Llwyd: I am sure we all share in the joy of Mrs. Perry and Mr. Pumfrey. This will be a great weekend for them.

The right hon. Member for Penrith and The Border (David Maclean) has worked hard on this issue, and I fully support what he said. There would be a problem if we reopened, wholesale, previous bad registrations but I should like to detail one burning issue, a matter I raise not just now, having done so on Second Reading and, with others, in Committee.

Like the hon. Member for South-East Cambridgeshire (Mr. Paice), I support the Bill. There is much to commend it. But I think it misses one or two points.

One bad example of a situation that the Bill cannot rectify—the Minister will correct me if I am wrong on this—is the case of common land CL 79, relating to Melinbarhedyn, near Machynlleth in mid-Wales, an example given to me by the National Farmers Union of Wales. Because of the Countryside and Rights of Way Act 2000, the Countryside Council for Wales was responsible for mapping common land and open-access land. The CCW took the information held by Powys county council on the common land register. The mapping exercise, when completed, allowed the divisional office in Llandrindod Wells to overlay the common land maps on the integrated administration and control scheme—IACS—information that it held for subsidy purposes for farmland.

As a result, farmland that had been bought and sold as freehold land for hundreds of years is now showing up as registered common land. That land is enclosed and has been improved by the owners. Over the years, many farmers have received agricultural grants to improve it, grants that were not available for use on common land. The farmers concerned hold title deeds, of course, and official searches were carried out showing when
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ownership had changed. None referred to common land. They did refer to “open sheepwalk” and “open sheepwalk, now fenced”.

In the 1960s, when the commons register was reviewed, it appears that the Ramblers Association registered the area as common land, and as no one objected the registration stood and remains on the register today. I understand that the Ramblers Association registered a lot of land in this way, and if the claim was challenged, the association withdrew the registration without opposition. I know that to be true because I was in practice when the Commons Registration Act 1965 was having its impact in mid, north and south Wales and in Shropshire. The question is why the landowners did not object to registration. The common-sense answer is that they had no reason to do so, because their title deeds gave them absolute, unfettered ownership without encumbrance.

In 1987, some landowners, by now aware of the registration, appealed to the commons commissioners to establish their ownership, and that was granted on 6 February 1987. It appears that they did not then apply—if they could have done so—to have the land removed from the commons land register. The farmers concerned have seen their financial assets devalued, and under the Countryside and Rights of Way Act 2000 the public now has full access to the land. In future, no doubt, boundary walls—dry-stone walls—will have to come down to allow as much access as is necessary.

The important point is that as agricultural subsidies move to hectarage payments, as we know they are, the loss of that farmland is affecting payments. The farmers have no rights registered in the land, so no headage is attributed and no payments are offset by the divisional office on the land. Yet the farmers ask why they should register rights for commons in the circumstances that I have described. The divisional office required sight of the deeds; it has been done and there has been no change.

I understand, incidentally, that Powys county council has used the term “sheepwalk” as an indicator of “waste of the manor”, which it uses to determine common land. The farms concerned were all part of the same estate and had grazing on the same part of the sheepwalk, which was an open upland area. As I have already said, it was enclosed prior to the current ownership. One farm has more than 46 hectares. It follows from what I have said that the current arrangement is a great problem, conundrum and a matter of great concern to the relevant landowners. It appears that the land was incorrectly registered and unless there is an opportunity to deregister, the land itself will be undervalued and, more importantly, there will be a massive loss of subsidy in the future.

Four families are involved in this particular case: Mrs. Jones of Barhedyn, Mr. Morris of Ty Coch, Melinbarhedyn, Mr. Lewis of Cefnbarhedyn and Ms Jones of Rhiwgreafol. Hansard will no doubt enjoy that. I should not really say it, but I see that there is a Welsh speaker taking notation for Hansard, which, in the circumstances, is a jolly good thing! It is a serious matter, however. I have to say that both the Minister and his predecessor have been very helpful with the Bill. It was useful to serve in Committee because reasonable arguments were put on both sides, and I believe that people listened to them.

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My one remaining grouse—if I may use the word in connection with moorland and uplands—is that the circumstances of this case are fairly prevalent. I am not saying that it goes on everywhere, but there are many other examples. The farmers are not in a position to go to the High Court; in these circumstances, it would not be the right avenue to follow. I am not sure, though, what possible avenue they have. In other circumstances, there is the option of going to the High Court for some form of rectification, but it is not appropriate in this case. I urge the Minister to reflect on whether anything in the Bill will assist these people, who are desperately worried—and understandably so. I am sure that in due course the Minister will provide his reasoned response to my plea.

Barry Gardiner: First, I wholeheartedly agree with my hon. Friend the Member for Sherwood (Paddy Tipping) when he thanked my officials for the way in which they have dealt with all matters relating to the Bill. His words were greatly appreciated by me and, I am sure, by them.

At risk of placing my own position in peril, may I say that I often see merit in the words of the former Opposition Chief Whip, the right hon. Member for Penrith and The Border (David Maclean) and that I am not averse to seeing merit in what he said on this occasion? I do not know whether the right hon. Gentleman has seen the briefing on the Commons Bill, which identifies the ownership of rights of common. I hope that it explains, to some extent at least, why we cannot adopt wholesale and simply the approach that he has commended this afternoon.

The issue of the register failing to show who can exercise rights of common is an important one. Traditionally, rights of common are attached to land, typically a farm, and those rights may be exercised by the landowner. That means that most commoners have strong connections with the common, because they occupy farms that neighbour it. The Bill preserves and reinforces that connection by banning severance and by providing that the registers are conclusive evidence of the attachment of the rights to land.

The Bill does not enable owners of such land to register their personal entitlement to exercise rights, because that entitlement is the inevitable consequence of their owning the land. Ownership of land can be demonstrated by registration of ownership in the Land Registry, as the right hon. Gentleman acknowledged. However, we acknowledge that it would be helpful if the register showed who is entitled to exercise rights.

3 pm

We will enable commoners to enter a supplementary note on the register, declaring their entitlement to exercise rights. The declaration would not be conclusive but may be informative. We are also exploring the possibility of providing in regulations that a commoner need not be consulted on any matter affecting the common unless he has declared his entitlement to those rights, thus giving him an incentive to do so.

David Maclean: I am grateful to the Under-Secretary for giving way—he is customarily courteous. I am largely content with what he has said. I agree that a declaration can be only informative, not conclusive. However, could he make declaring entitlement the
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default position so that adding supplementary information would be the norm? Perhaps he cannot make it compulsory or insist on it in every case, but if the matter is left so that a commoner may attach the information if he feels like it, it will not happen. If he can somehow make it the default position, we would all be content.

Barry Gardiner: I recognise the strength of the right hon. Gentleman’s argument. I was trying to explain that we are considering whether to provide in regulations that the commoner need not be consulted on a matter affecting the common if personal rights have not been registered. That is a powerful incentive. It is not simply asking people to register, but providing a carrot. I am not committing the Government to that now but we are considering it. We shall give it further consideration when we frame the regulations. I hope that that goes a long way to answering the right hon. Gentleman’s points.

The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) spoke with great passion and knowledge about the case of many of his constituents and the errors resulting from the Commons Registration Act 1965. As he acknowledged, it is impossible to say how many errors the registers contain, not least because there is currently no legal mechanism to deal with them and therefore no obligation on the registration authority to record them systematically.

However, the mapping of open country and registered common land for the purposes of the statutory right of access under the Countryside and Rights of Way Act 2000, which the hon. Gentleman mentioned, has brought into the open hundreds of alleged errors, some of which have been taken to appeal under the Act, although it is not possible for appeals to deal with wrongful registration. That is why schedule 2 provides for deregistration of some wrongly registered commonly land. I cannot say whether those provisions will apply in the specific cases that he has described—that would be for a tribunal to judge in due course. It would be imprudent and wrong of me to try to make a judgment. However, if he wishes to write to me with details of those cases, I shall try to be as helpful as possible.

Mr. Llwyd: I am extremely grateful to the Minister for that response and I will take up his invitation. The exchange has been helpful and we might be able to consider together whether the Bill contains a solution.

Barry Gardiner: With that, I simply ask hon. Members to accept amendment No. 14 and the others in my name.

Amendment agreed to.

Amendments made: No. 15, in page 13, line 41, at end insert—

‘( ) An application made for the purposes of any of—

(a) sections 6, 7, 10, 11, 12, 13 and 15, and

(b) paragraph 1 or 3 of Schedule 1,

shall, subject to any provision made by or under this Part, be granted.'

No. 16, in page 14, line 6, after ‘section 19' insert ‘, Schedule 2'.— [ Barry Gardiner .]

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Clause 26


Barry Gardiner: I beg to move amendment No. 17, in page 15, line 15, leave out ‘association' and insert ‘council'.

Madam Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 18 to 22, 24 to 75, 81, 82, 84 to 91 and 109.

Barry Gardiner: I trust that I shall be able to dispatch this group of amendments in even less time than it took you to read them, Madam Deputy Speaker.

The amendments change the name of commons associations to commons councils. There is cross-party support for such a change, and support from stakeholders. The proposed changes are numerous. We have weighed up their impact at such a late stage of the Bill’s proceedings, but the changes are purely presentational and do not in any way alter the functions of the bodies or the way in which they will operate, so I commend them to the House.

Mr. Paice: I welcome this group of amendments unreservedly. As the Minister knows, I proposed them in Committee so I am delighted that the Government have come round to that way of thinking, especially because, as the hon. Gentleman rightly says, it is also the view of the stakeholders. The purpose was to get rid of the confusion that would have occurred between statutory and voluntary associations, and although a variety of terminology was bandied about, the obvious word was councils. A commoners council already works successfully on Dartmoor, so I welcome the proposal.

One of the Government’s reservations about my proposal was that it would require the large number of amendments to which you referred, Madam Deputy Speaker, and that the Opposition might at a later date use that to accuse the Government of not getting their legislation in order. I hope that my hon. Friend the Member for Romford (Andrew Rosindell), the Opposition Whip, will record that on this occasion I promise not to chide the Government for tabling such a large number of amendments, because they concur entirely with those I tabled in Committee and I welcome them.

Mr. Roger Williams: I, too, welcome the amendments. As the hon. Member for South-East Cambridgeshire (Mr. Paice) said, they get rid of the confusion that could arise between the statutory bodies to be set up under the Bill and the voluntary associations that the Minister’s predecessor anticipated would continue to have purposes and functions in the future. The amendments will be an excellent resolution of that problem; they will give people greater clarity about what is a statutory and what is a voluntary body, which can be only to the good and will simplify the management of commons.

Mr. Atkinson: I join the welcome for the change, but will the Minister give a little more explanation of amendment No. 23? It is slightly different, in the sense that it inserts the words

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I should be interested to know—

Madam Deputy Speaker: Order. Perhaps I can help the hon. Gentleman. There are many amendments in the group, but Government amendment No. 23 is not one of them.

Mr. Atkinson: I beg your pardon, Madam Deputy Speaker. I shall come back to it later.

Amendment agreed to.

Amendments made: No. 18, in page 15, line 16, leave out ‘association' and insert ‘council'.

No. 19, in page 15, line 17, leave out ‘association' and insert ‘council'.

No. 20, in page 15, line 18, leave out ‘association' and insert ‘council'.

No. 21, in page 15, line 19, leave out ‘association' and insert ‘council'.

—[Jonathan Shaw.]

Clause 27

Procedure for Establishment

Amendment made: No. 22, in page 15, line 22, leave out ‘association' and insert ‘council'.— [Jonathan Shaw.]

Barry Gardiner: I beg to move amendment No. 23, in page 15, line 37, after ‘common' insert

‘(and in particular persons exercising rights of common)'.

The amendment addresses Opposition concerns that, when the national authority is considering whether there is substantial support to establish a commons council, representations from commoners actively exercising their rights should carry greater weight than those who are inactive, or who are not exercising their rights.

On some commons the number of inactive commoners exceeds the number of active commoners. There is concern that opposition by a large number of inactive commoners might be enough to prevent a council being established. Although any views expressed by inactive commoners will undoubtedly need to be considered, the amendment ensures that the national authority must pay particular regard to the views of those commoners actively exercising their rights as they are the people who are actually making use of the common. Commons councils will have functions relating only to the management of agricultural activities, vegetation and common rights. The views of those actively exercising rights of common are extremely important as they are the persons able to influence the management of the common. Our amendment will require the Secretary of State, or the National Assembly in Wales, to attach more weight to the views of active commoners when considering representations from those with common rights.

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